Law and Disorder

Some believe that the creation of new crimes and mandatory sentences needs to be curbed by the Legislature, but the political will says otherwise.

The stars must have been perfectly aligned in 2001 when every imaginable party involved with the criminal justice policymaking process at the state Legislature sat down at the same table with the same goal. Prosecutors offered an olive branch to defense lawyers, judges worked calmly with district attorneys and victims groups even took a non-hostile approach towards communicating with prison officials.

On the chopping block were mandatory minimum sentences as well as other measures touted by law-and-order lawmakers who portray themselves as "tough on crime." Over the years, harsh penalties had created a booming prison population, overworked courts and strained budgets. Collectively, the group came up with ways to ease sentences and carve out alternatives to incarceration.

But, oh, what a difference five years can make.

"The irony of all that is we've come full circle again," says Rep. Danny Martiny, a Metairie Republican who chairs the House Criminal Justice Committee. "It seems to go in cycles. One year we create the crime, then we come back and create the mandatory minimum sentence, then we take away (time off for good behavior). Pretty soon, it mounts up."

Martiny and others believe it's time again to review the criminal statutes, come up with viable options to long prison sentences and take a more cautious approach to what lawmakers adopt. If the system continues to operate without this sort of accountability and review, serious problems now bubbling under the surface could rise up and detonate.

For example, prosecutors contend they're being stretched thin because defendants often feel forced to go to trial by the minimum sentences. In effect, defendants frequently feel they have nothing to lose by going to trial -- and no incentive to plead guilty because penalties are stiff no matter what.

Judges want more discretion and they fear the trend toward harsher minimum penalties may start impacting their civil dockets, which already compete for attention with criminal cases. For their part, prison officials say they don't mind taking on more criminals as long as there's money in the budget to pay for them. Even victims groups agree that the system could be fairer for all.

"It's not that we don't have the tools and resources for such a review," Martiny says. "It's if anyone wants to tangle with these issues right now. And next year will be even more difficult because it's an election year and there will be people who will want to be tough on crime again."

And therein lies the rub. No elected official wants to be viewed as soft on crime, Martiny says, so lawmakers are always under pressure from constituents to display true grit. Sometimes, the pressure is economic -- they push stiffer criminal penalties in hopes of obtaining federal prison grants and related incentives.

Rep. Damon Baldone, a Houma Democrat who serves on the criminal justice committee, is no stranger to mandatory minimums and escalating penalties. Last year, before the whole world saw live images of post-Katrina looting on Canal Street, he passed legislation to establish a minimum jail sentence of three years for looting during a natural disaster. Now Baldone is back this year trying to prohibit such offenders from receiving time off for good behavior.

In the post-Katrina reality, woe to anyone who dares to be soft on looters.

Baldone admits not every law-breaker should be sent directly to jail -- depending on circumstances -- but he cautions that lawmakers' authority to influence sentences should not be completely phased out.

"A special crime for beating up a vending machine, rather than damage to property, is ridiculous," Baldone argues, "but creating something special for theft (or looting) in a case where police are otherwise occupied is different."

Lawmakers often take full advantage of their right to file mandatory minimum sentencing bills, to the tune of two dozen on average each year since 2001. Additionally, in the current session alone, lawmakers have filed another 22 measures that would create new crimes, such as theft of oilfield equipment, assault on a utility worker with a firearm and picketing a funeral.

If every bill were passed every session, the financial impact would be substantial. For instance, Rep. Steve Scalise, a Metairie Republican, has a bill to create the crime of hurricane relief fraud, which would differ only slightly from the standard definition of fraud. Most notably, it requires at least two years in prison. According to a fiscal analysis, the change would cost the state more than $16,000 per prisoner for the mandatory sentence -- and this doesn't include court costs.

On the judicial side, the trend toward large minimum sentences is forcing the courts to face an eventual "breakdown," says Hugo A. Holland, Jr., as assistant district attorney in Caddo Parish and a member of several prosecutors' groups. With more people opting to go to trail, prosecutorial resources and manpower are evaporating at an alarming rate.

"Penalties are becoming so draconian that people are willing to roll the dice and go to trial," Holland says. "[The Legislature] passes things and they end up having unintended consequences."

The increase in criminal trials could start making it more difficult for civil cases to get equal attention in courtrooms around the state, says Judge Robert H. "Bob" Morrison, a district court judge from Amite and spokesperson for the Louisiana District Judges Association. In fact, he says it's already happening.

"You have to give priority to criminal cases because there's a time limit on when you can prosecute them," Morrison says, adding that more discretion should be given to judges to iron out criminal matters.

New Orleans is the only jurisdiction in the state where this isn't a problem, because criminal and civil courts are separated. There has been an ongoing effort, however, to consolidate the courts in the Crescent City.

Another unintended consequence of creating new crimes is that the more specific crimes become, the easier they are to defend, says George F. Steimel, a spokesperson for the Louisiana Association of Criminal Defense Lawyers. Steimel attributes that to the prosecution's burden of having to prove every element of a case beyond a reasonable doubt -- the highest burden of proof in America's legal system and one that is regarded as constitutionally embedded.

"We probably already have every crime there is to have on the books, but people keep creating these specialty crimes," Steimel says. "Everyone wants special protections, from businesses to residents, and they feel if they create the crime and define it, it'll get rid of it. That's the mindset, but it doesn't always work that way."

Meanwhile, Louisiana's prison population has more than doubled since 2000, according to a legislative report, and the prison system requires more money every year. Richard Stalder, state corrections secretary, says he doesn't mind taking more prisoners into the system -- as long as there's some fiscal accountability (read: money) from lawmakers for sending them there.

Martiny agrees that money doesn't always follow legislative declarations. To reign in the system, he says, it's a good idea to understand where it all starts -- and that can be a challenge in itself. Sometimes emotions play a part in excessive sentencing laws, such as the fiery debate during the 1970s that gave birth to life sentences for heroin possession. Only later did people come to realize that other drugs were just as bad, he adds, even though they carried lighter penalties.

"Sometimes we just overreact," Martiny says. "We should take a step back and calm down, but that's hard to do."

Nowadays, technology is driving the creation of new crimes. Legislators have filed bills to prohibit using cell phones while driving or when being arrested by a police officer. Comments by Fox talk show host Bill O'Reilly slamming Louisiana's sex offender laws also prompted legislators to file nearly three dozen bills addressing the topic this year.

Another review of minimum sentences and crime definitions is "not out of order," says Pete Adams, who has been lobbying the Legislature for more than 30 years as executive director of the Louisiana District Attorneys Association. However, that might not happen until new leadership arrives in Baton Rouge -- after the next statewide elections in the fall of 2007. At that point, elections (with their pressure to be "tough on crime") will be over, term-limited lawmakers will be gone, and much of the Capitol will be a blank slate.

"Then we will have some people who will have to live with the future impact," Adams says. "Someone will have to be accountable."

"The irony of all that is we've come full circle again," says Rep. Danny Martiny, a Metairie Republican who chairs the House Criminal Justice Committee. "It seems to go in cycles. One year we create the crime, then we come back and create the mandatory minimum sentence, then we take away (time off for good behavior)."